Articles Posted in Family law

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In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending.  You will still need to submit an affidavit and a request for a restraining order.  However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially.  The hearing will still be held 14 days from the date the judge signed the order.

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You are a parent who has primary possession of the children and you need financial assistance from the other parent but they are not willing to help out by agreement alone. You realize you are going to have to take additional measures to get anything out of them; more specifically, you visit with an attorney and understand that it is going to take a court order.

Regardless of whether your case is a divorce or suit affecting the parent-child relationship, you will need to include a request for child support within your pleadings. This ensures that you have noticed the other parent that you are seeking this in court and it ensures that you can bring this issue up at the hearing. If your case is just beginning, this issue would be addressed at a temporary orders hearing. You and your attorney will put on evidence of the monthly net resources of the other party. How do you do that if you do not know what the other party is making? Your attorney at Guest & Gray will ensure that the party is noticed and ordered to appear with their financial records so that the judge and/or your attorney can calculate the correct amount of child support. However, if the other party ignores the court order and does not bring their financial records, typically the judge will be agitated with this and start asking the party questions on the stand about their financial information.

Once the monthly net is determined, child support is calculated based upon a percentage amount determined by the number of children involved in the suit as well as other factors. For instance, if you have one child child support would be 20% of the obligor parent’s monthly net resources. If the obligor parent has one other child that they are responsible for (remarries or has another child with another person) lowers the percentage down to 17.5% and then gets lower depending upon the number of additional children outside of your case.

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Are you involved in a divorce or child custody suit and you are concerned that your ex constantly leaves your child with strangers or a relative? Then the right of first refusal might be the answer to your concern. The questions then arise as to how it works and would it be best for your child.

If you or your ex are in possession of your child and you are going to be absent for a certain period of time, then you must first call the other parent before you can leave your child with another relative, babysitter, etc. This provision is a mutual agreement between the parties that if you or your ex are not going to be present after a certain number of hours (can range from 2, 4, 5, etc.) then you agree that the other parent can have possession of the child during your absence. As you can imagine, this provision has both negative and positive aspects.

For instance, you know that if your ex is going to be absent during their scheduled period of possession more than 3 hours then you have the first opportunity to take possession of the child during their absence. This allows for additional time with a parent who may have only a standard possession schedule which reinforces Texas’ public policy of frequent and continuing contact between both parents. After all, who would want a babysitter to watch their child if you know the other parent is available? Would you not want your child to have some extra time with the other parent? Maybe, maybe not. You definitely need to discuss the pros and cons with your attorney.

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Are you married and your wife has been unfaithful and now she is pregnant?  Did your ex-girlfriend call you and tell you that she had a child and it is yours?  If you are not sure that you are the father, you absolutely need an attorney.

How this issue can arise and what the law says:

If you are filing for divorce for a series of reasons, namely the adultery and resulting pregnancy, you want to be sure that you are not adjudicated the father of this child.  Reason being, in Texas all children born during the marriage are assumed to be products of the marriage and therefore, you are the presumed father.  So, you will need to make sure that if you have any doubts that you plead for a paternity test.  If it comes back negative and you are not the father, you will want to ensure that you are not ordered to be the father of this child.  Many men fall into the trap of not being the father, but the order states otherwise and therefore they are on the hook for child support for a child that is not biologically theirs.

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You get your children back from your ex’s house after their visitation and they are openly telling you all about the divorce case, what your ex has called you and where you should go, etc.  You are appalled and upset that your children know anything about your case.  You call your ex and tell them that this is inappropriate to discuss with the children and they completely dismiss you.  You know that the judge clearly said that neither you nor your ex could discuss anything about the case with your children.

While the damage has already been done with your children with what they have overheard or discussed so far with your ex, there are some helpful requests that you could make to deter this type of behavior.  For starters, as long as your orders do not contain anything requiring an agreement before enrolling the children in counseling then you should do so.  Having a professional who can meet with the children, give them an outlet for their emotions as to the divorce, and help them process the effects of the divorce is such a positive movement forward when this type of situation arises.  If the professional meets with you and discusses any concerns with respect to what they are reporting about your ex, then their testimony can be used in a court hearing.

Additionally, if you do decide to pursue a contempt hearing against your ex for violating a court order (discussing the case with the children and making disparaging remarks about you), then you will need proof of such.  If your children are 10 or older most judges will talk with them and the children can tell the judge themselves what they have overheard or what they have been told.  If your children are too young or are too afraid to be put in the middle, then this would be where a professional’s testimony would be helpful.

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You brought some property into your marriage, accumulated some property along the way, and now you are facing a divorce.  You need advice about what is really yours, hers, and in between.  You are not alone to have commingled property—many people have concerns about property and what ultimately happens to it, especially if it is a house or some other large asset.

Many people get confused and think that whatever is in their name is their property and same goes for their spouse.  Unfortunately, that is not how it works in Texas.  We are a community property state and the character or nature of the property depends upon its inception of title—when did you acquire that piece of property.  Community property is anything acquired during marriage, no matter whose name it is in.  Separate property is anything acquired prior to marriage or by gift, devise or descent during marriage.  Therefore, if you bought your home prior to marriage then it is your separate property.

But, now you are concerned because you deeded the home to both of your names after you were married.  However, that is not enough to convert separate property into community property under Texas Family Code Section 4.202.  In fact, subsection (a) states that you must have an agreement to convert separate into community property and that agreement must “(1) be in writing; be signed by the spouses; identify the property being converted; and specify that the property is being converted from separate property into the spouses’ community property; (2) and it is enforceable without consideration.”

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Many people avoid getting divorces because they cannot afford to do so.  They know that they depend upon the other spouse’s income in order to continue paying the bills.  You are not alone in wondering how you will be able to afford everything during and after your divorce.  You know you cannot stay married and you know you need financial assistance at least with some of the bills.

Fortunately, Texas does allow for temporary spousal support while your divorce case is pending.  During initial consults with clients, the question always arises on income, who is going to stay in the marital residence, and if financial assistance is needed.  If it is, then clients will complete a financial information sheet for temporary orders hearing purposes which will be filed.  This allows the judge to see your income and expenses, your spouse’s income and expenses, and any expenses associated with the child.  It is basically a breakdown of your household monthly income and expenses so that the judge can determine whether or not you truly have a need and if your spouse has enough income to make up for the deficit.  In most cases, and especially if the spouse has already been doing so, the court will order the spouse to continue paying the bills that they have already been paying after separation and prior to the court date.  For instance, if your spouse has already moved out of the home but they have continued to pay the mortgage after moving out, then we would ask the court to maintain that status quo while the case is pending.

Additionally, if you have a child and you are awarded the exclusive right to designate the primary residence of the child then the other parent will most likely be paying child support.  This is additional assistance for you. If it is only one child, it would be 20% of the other parent’s monthly net resources.  The percentage goes up with the number of children.

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You have final orders in your custody case and you have the exclusive right to designate the primary residence of the child.  The problem is that this right is subject to a geographical restriction (ex. Dallas County and contiguous counties, Kaufman County and contiguous counties, etc.) and therefore it puts a restriction on you and where you can live.  You currently had a meeting with your boss and they want to relocate you or you have found better employment opportunities out of state.  You know that this would be really good for your family, but you feel as though your hands are tied because of this geographic restriction.

However, you may have the opportunity to seek a modification to lift the geographical restriction.  It truly depends upon your situation, the factors that the court will consider, and even the presiding judge.  In fact, this is a difficult decision for courts.  On one hand, you have the public policy of frequent and continuing contact under Texas Family Code Section 153.001(a)(1) which states that “children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child”.  On the other hand, you have the primary parents who really need this move to better their family.  Therefore, Texas courts struggle with this decision in modifications.  The Texas Supreme Court Lenz v. Lenz does offer guidance with respect to factors that would support relocation.  For instance, the Court and courts after it have examined: the other parent’s lack of interest in the child; prior connections to the new location (do you have family there, have you ever lived there, etc.); and reasons for the move.

Therefore, if you have an opportunity for a job in another state that pays considerably more money, you have familial ties in the state and the job is located near that family, you originally lived in that state, you only moved to Texas for your ex-spouse, your ex-spouse is not exercising their visitation, and you do not have anyone additional in this state to support you then that is definite grounds to discuss a modification.  Additionally, it is helpful if you have a roadmap already planned out that can be explained to the judge.  For example, where you are going to live, where you are going to work, where the child will attend school, and any extracurricular activities for the child.  If you are the parent moving, most likely the court will make you pay all travel expenses for the child to have visitation with the other parent.  Many courts use this order as compensation to the parent who remains in Texas.  Like with many family law issues, this is a decision the courts must take on a case-by-case basis.  As you can see, there are several issues to discuss with your attorney.

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You have a final family order, whether it is an order in suit affecting the parent-child relationship, final decree of divorce, etc., and you would like it modified.  You are either the parent receiving child support and you want the amount increased or you are the parent paying child support and you want it decreased.  Or, there has been a change that would require the conservatorship or visitation modified.  It is not an uncommon question and the Texas Family Code does specify particular deadlines and requirements with respect to filing a modification.

For child support, Texas Family Code Section 156.401 states that final orders can be modified if either (a) there has been a material and substantial change in circumstances for a party or the child after the order was entered; or (b) it has been three years since the order was last entered or modified AND the monthly amount either differs by 20% or $100 from the amount that it should be under the child support guidelines.  So, it has been less than three years but something has happened that would require a change in child support then you can seek a modification.  For instance, did the parent paying child support get a new job after your orders were rendered and they are now making more money?  Or, did the obligor lose their job and they are no longer making any money?  Additional instances of material and substantial change in circumstances would also be (a) the obligor parent had another child that they are financially responsible for; (b) health insurance has changed (lost or new premiums); or (c) the children are now living with the obligor parent or another person.

That brings us to modifying orders as to conservatorship and/or possession or access.   If you are seeking to modify the parent who has the exclusive right to designate the primary residence of the child in less than one year from the orders being rendered, Texas Family Code Section 156.102 governs.  If you do so, you must attach an affidavit to your pleadings and the affidavit must allege specific facts that the child’s present environment may endanger the child’s physical health or significantly impair their emotional development.  Not only must these allegations be made, but you also have to prove this.  If you do not have this, you will have to wait more than one year to change who has the exclusive right to designate the child’s primary residence.  If you are modifying in more than a year, your burden is a material and substantial change in circumstances of a party or the child AND it must be in the best interest of the child.  In fact, best interest of the child is the ultimate burden in every family law case.

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You have been divorced for a few years and your child comes home after a visit with their dad and reports “daddy has a new girlfriend.”  You start asking questions like the person’s name, what they look like, what they did, etc.  You find out the new girlfriend spent the entire visitation weekend there, including overnights.  You contact your ex to find out who this person is and if there is anything you should be concerned about.  However, your ex refuses to tell you and instead tells you to stay out of their life and that it is none of your business.

Whether or not you can modify your final orders to keep away the new paramour will depend upon a few factors.  For starters, a modification carries a burden of “material and significant change” in circumstances, the parties or child AND the modification must be in the best interest of the child.  In most cases, the judge will not keep the new paramour away from your child because they are not viewed as a danger to your child.  The key is going to be exactly why you are concerned with the new paramour.  If your case is one in which the new paramour absolutely should not be around your child then you will want a stay away order.  For instance, if the new paramour is a registered sex offender, introduced your ex to controlled substances, has an extensive criminal history some of which involves crimes against a child, or your child does not want to be around this person because they make them uncomfortable (there will need to be elaboration on this) or anything of that nature then you would want to consult with an attorney and seek a modification.

The important thing to know is that this paramour is not a party to your suit—therefore, in not being a party, they cannot be ordered to do anything and if they are it will not be enforceable.  Rather, if you are going to get orders having the paramour not be present, it is important to request an injunction from your ex allowing this person to be present or near your child.

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